« WOW and MSM | Main | Calling all space engineers »

Sep 06, 2005

Comments

1.


What a terrible decision. I don't think there is much more that can be said for it..

2.

I'm not a lawyer, but after perusing the decision, it seemed fairly reasonable. The kicker to my mind was that because the bnetd.org did not make checks for valid CD keys or simultaneous use of the same key, it effectively made it possible for anyone to engage in multi-player games online without having purchased a valid license. As a result it seems like bnetd.org constituted a de facto dismantling of Blizzard's copy protection.

Isn't that reasonable?

Aaron

3.

I am not a lawyer (obligatory) either. However, the DMCA contains a pretty clear provision supporting the practice of reverse engineering. Operation of a product is an essential part of being able to reverse engineer it. Signing the EULA is a required to operate the product even if the original intent was to reverse engineer. In effect this gives every software publisher the ability to trump a vital provision of the DMCA.

It seems reasonable to you that a person be required to waive their ability to reverse engineer something in order to be able to reverse engineer it?

It definately did require them to dismantle Blizzard's copy protection. Copy protection that defacto gives Blizzard veto power over who can build an inter-operable service.

The whole point of protecting reverse engineering is to promote competition and innovation, giving companies veto power over who can compete with them essentially promotes monopoly.

I'd like to say that in the spirit of law both side should have been compelled to coooperate on allowing bnetd to honor the copyright protections.. However, in spirit the DMCA is a misbegotten anti-competitive beast designed to protect media corporations in the first place.

I don't have nearly as much issue with the end result as I do with the (lack of) reasoning that yielded it.

4.

Thabor>It seems reasonable to you that a person be required to waive their ability to reverse engineer something in order to be able to reverse engineer it?

No. That's lame. What I found reasonable is the claim that the use of the bnetd.org software itself provides an open outlet for nullifying Blizzard's copy protection, since once up on servers *any number* of simultaneous players could all be playing off the same, possibly bogus, CD key.

While the bnetd.org folks had a legitimate right to 'reverse engineer' (I accept your argument), using that 'reverse engineering' in order to offer up a free public service that amounts to a de facto defeat of Blizzard's copy protection seems like an pretty serious infringement on Blizzard's copyright.

Aaron

5.

Ahh, and one of the many reasons I decided that the farmer's life wasnt for me. Everyone is free to reverse engineer, but it is what you do with that new found knowledge that will get you into trouble pretty quick.

6.

Is it just me, or does it seem rather possible to do everything they did without ever logging onto Bnet and violating the TOU or installing the game on a computer, and thus never accepting the terms of the EULA? Surely it's not that simple...

I wonder if you could create a program to modify the install files to make it so the EULA never even shows up upon install. I bet you could. I don't know if this would help legally though.

I mean, if you never click the "I agree" button you have never seen nor signed any sort of contract right? You can't violate a contract if you haven't even seen it ever. At least I don't think you can...

"Bnetd.org constituted a de facto dismantling of Blizzard's copy protection."

And this is a problem why? Cause ya know, if there is one thing this world needs it's more copy protection and DRM.

7.

antiypatus>"Bnetd.org constituted a de facto dismantling of Blizzard's copy protection."

And this is a problem why? Cause ya know, if there is one thing this world needs it's more copy protection and DRM.

While as a gamer/consumer I like the sentiment, as a writer I believe that at least while I'm alive, my work deserves a little protection. It's my livelihood after all. I just assume the same extends to devs. ;P

Aaron

8.

anthipatus>Is it just me, or does it seem rather possible to do everything they did without ever logging onto Bnet and violating the TOU or installing the game on a computer, and thus never accepting the terms of the EULA?

No, it's not just you. Of the many things that IGE is accused of, for example, violating the EULA isn't something that would stand up as they say they've never clicked on one. It seems to me that if I wanted to reverse engineer something, I could easily get someone else to buy it and start running it, then they could sell it to me (which the EULA can't ban, under second use laws) and I could have my way with it. Then I could sell them it back when I wanted to restart it.

In the old mainframe days, complex software was rarely actually sold, it was usually licensed. Ownership remained entirely with the developer (and came with a hefty yearly fee, too). Although I wouldn't recommend a return to those days, it's not hard to imagine how a few awkward court decisions could presage it.

Richard

9.

anthipythus wrote:

"I wonder if you could create a program to modify the install files to make it so the EULA never even shows up upon install. I bet you could. I don't know if this would help legally though.

"I mean, if you never click the "I agree" button you have never seen nor signed any sort of contract right? You can't violate a contract if you haven't even seen it ever. At least I don't think you can..."

Seems like a lot of trouble just to rip somebody else off...

"And this is a problem why? Cause ya know, if there is one thing this world needs it's more copy protection and DRM."

Yup, why should Blizzard reap any of the rewards for all the effort they sank into producing the game?

10.

I guess I should feel stupid for paying full box price for Diablo II. Apparently the only component worth any value was the online component, and I foolishly spent all my time playing it offline.

11.

Well, I am a lawyer, and there isn't much here that should shock anyone.

The court specifically addressed the "reverse engineering" exception, and it pretty obviously doesn't apply here. There are four requirements to need to meet to take advantage of that defense - and one of them is that you can't invoke it if you are violating a copyright.

By reverse engineering a system that specifically was intended to break the CD Key system (and thus allow unauthorized copies of the game to be played online), they lost that defense.

In other words, it wasn't the reverse-engineering per se that got them in trouble, it was the specific fact that they used reverse-engineering to purposefully break Blizzard's copyright protection and allow people to play unauthorized copies of the game. So props to Aaron on that one.

For those who suggest that this could all have been solved by using a proxy to buy the original copy of the game (and thus click on the EULA agreement), I wouldn't put too much stock in that tactic.

Remember, they lost on the DMCA violation. Using a proxy to purchase might help you with part I of the reverse engineering exception (which requires you to have lawfully obtained the right to use a copy of the program), but that was never at issue. You would still lose the exemption for the exact same reason - regardless of whether you click on the EULA, you are still subject to the DMCA and still lose because you can't invoke the reverse engineering exemption because you are breaking a copyright.

In fact, the argument about the EULA was so weak, the appellants completely abandoned it on appeal, and hung their whole case on whether they could fit into the reverse engineering exemption (see footnote 9). When they lost on that ground, the whole case was over.

12.
While as a gamer/consumer I like the sentiment, as a writer I believe that at least while I'm alive, my work deserves a little protection. It's my livelihood after all. I just assume the same extends to devs.

I definately support protecting creative work. I think DRM is a flawed concept though. If I have a legitimate license to some music or to a book I should still have access to that content in 5 years. With DRM in 5 years your player probably won't work anymore. The vendor may not support that format anymore. Why should I have to repurchase content for which I already have a legitimate license?

By and large developers are in a completely different situation. Open source software is a good counter example. It takes more than just source code to make a working game. Id is another good example. They just released the source to Quake 3 publicly.

13.

Um, creating a server which hosts a game is not infringing anyone's copyright.

Not checking for CD keys does not infringe anyone's copyright. (It's also impossible to do, since Blizzard refuses to reveal the CD key checking algorithm.)

Suppose I made a parking lot. Which allowed cars to park in it. Without checking to make sure they are authorized to do so. And suppose Ford wants to charge Ford owners $1 every time they park. Am I doing something which might reduce Ford's profits? Yes. Am I doing something in any way illegal? Not yet. Am I doing something which should be illegal? Not at all.

Just because a business model might make you money does not mean society should legally enforce your business model. For instance, it is legally possible for Congress to establish national "air rights", sell those rights to Halliburton, and let Halliburton charge every U.S. citizen for breathing. A good business, if you can get it. This could be law in the U.S., and Halliburton, for one, would strongly defend such a law. But I would submit that such a law might be detrimental to the overall operation of the country. The parallel to the permanently-increasing trend of copyright powers is exact: they're good for a very limited set of businesses, bad for the country overall.

It's a terrible decision, full of piss-poor reasoning - for instance, on page 17-18, the decision basically decides that the original Battle.net code - not the game code, but the server code - is a copyrighted code which has been copied by the Defendants, despite the fact that this didn't occur at all.

This decision, if it stands, entirely ends reverse-engineering, forever.

14.

Anon>Suppose I made a parking lot. Which allowed cars to park in it. Without checking to make sure they are authorized to do so. And suppose Ford wants to charge Ford owners $1 every time they park. Am I doing something which might reduce Ford's profits? Yes. Am I doing something in any way illegal? Not yet. Am I doing something which should be illegal? Not at all.

Um, I'm not sure what this is supposed to show. It's so far from the situation under consideration that it fails as an analogy.

I suppose your hypothetical could be rehabilitated. If so, it would have to be something like the following:

Suppose Ford designs a new type of car that by some miracle runs on air and looks really cool (everyone wants one) but can easily be cloned whenever it is parked. To avoid having its cars duped, Ford designs the car so that it can only be parked in proprietary parking lots. You come along, reverse-engineer the parking lot and then build them. But your parking lot, while it allows owners to park their car their, does NOT prevent the cars from being duped.

In that case, I don't see how your right to reverse-engineer trumps Ford's right to institute proprietary measures to protect their creations.

Yes, I think you have a right to reverse engineer. But I don't think that you have the right to use the product of your reverse engineering in any way you want.

Thabor>I definately support protecting creative work. I think DRM is a flawed concept though. If I have a legitimate license to some music or to a book I should still have access to that content in 5 years. With DRM in 5 years your player probably won't work anymore. The vendor may not support that format anymore. Why should I have to repurchase content for which I already have a legitimate license?

I agree, and I'm not supporting DRM. I'm just saying that I believe reverse engineering, while a valuable and important right in itself, should not be available as a defense for facilitating the pirating of others creative work.

15.

So, then, would bnetd be okay if it somehow connected to the battle.net server and verified the CD keys of all the players it is serving with them (perhaps by posing as a regular client itself), and then did everything else the way it does now?

Is it just the CD key issue that's wrong, and everything else is okay? (providing a competing service to battle.net?)

It seems as though the question then would come down to bit-twiddling. If bnetd did the above, and became legal and moral, but was also open source, anyone could come along and just remove that keycheck and run the source code themselves. Should that action (perhaps something as simple as changing a '1' in the code to a '0') be illegal? Could it be?

I'm posing my question both to monkeysan and to the people who read and understood the legal documents in question. I read them but it got kind of obtuse there for a while.

16.

gregorus>So, then, would bnetd be okay if it somehow connected to the battle.net server and verified the CD keys of all the players it is serving with them (perhaps by posing as a regular client itself), and then did everything else the way it does now?

I imagine in that case, Blizzard would claim that their servers were being hacked and/or at least being subjected to unauthorized/unlawful use and seek redress on different grounds.

>Is it just the CD key issue that's wrong, and everything else is okay? (providing a competing service to battle.net?)

To my mind the CD issue is the glaring thing that's wrong. I don't see how offering competition could be construed as piracy.

>If bnetd did the above, and became legal and moral, but was also open source, anyone could come along and just remove that keycheck and run the source code themselves.

Yeah, then it would be the problem of whoever ran a service based on the tweaked source, not bnetd.

I don't think the actual tweaking is what would be illegal, but, rather, the use of the tweaked code to supply a service that de facto defeats Blizzard's copy protection.

But again, and as you rightly point out, I'm no lawyer and am talking mostly out of my philosophical ass. ;P

Aaron


17.
I agree, and I'm not supporting DRM. I'm just saying that I believe reverse engineering, while a valuable and important right in itself, should not be available as a defense for facilitating the pirating of others creative work.

So we pretty much agree. I disagree that they were facilitating piracy. They did not distribute Blizzard's copyrighted server code, they didn't not distribute copies of Blizzard's copyrighted client.

There is no doubt whatsoever, that they circumvented copyright protection. Section f is a specific exception to the circumvention provisions. Equating the fact of circumvention to copyright infringement in effect completely discards section f completely.

18.

The Bnetd server has no connection with any illegal copying of Blizzard's games. They don't copy game CDs for people. It may be that Blizzard has a problem with people copying their games. But that problem isn't due to someone writing a server which interoperates with Blizzard's games. Hint to the clueless.

This same law - the DMCA - is going to be used by Microsoft extensively with the Xbox 360. Each peripheral will have a little bit of computer code in it, whether that code is really needed or not. The Xbox will access that code and "verify" that it's an "authentic" peripheral.

What this means to you is that instead of buying an extra controller for $19.99 from MadCat, you'll be buying an extra controller for $49.99 from Microsoft. It will be illegal for MadCat to produce a controller that plugs into the Xbox 360, even if Microsoft's controllers are shitty and overpriced.

For those very few of you which have been around for a while, IBM did this with its computers back in the day, and got slapped for it. Plus ca change...

Remember when you're buying a $49.99 controller for your new Xbox - the extra $30 profit that Microosft is picking up on those is due solely and entirely to the DMCA. Remember when you can't sell used game disks to Electronics Boutique because they're locked to you and are illegal to unlock. Remember when you can't sell a used Xbox! Remember when you can't sell a used controller because it too has been locked to the console... All these are coming.

19.
This same law - the DMCA - is going to be used by Microsoft extensively with the Xbox 360. Each peripheral will have a little bit of computer code in it, whether that code is really needed or not. The Xbox will access that code and "verify" that it's an "authentic" peripheral.

The current under discussion is the opposite implementation. The analagous situation would be the Microsoft controller querying for a valid XBox console, while the MadCat controller "infringed copyright" by not checking for a valid console.

20.

anon>They don't copy game CDs for people. It may be that Blizzard has a problem with people copying their games. But that problem isn't due to someone writing a server which interoperates with Blizzard's games. Hint to the clueless.

clearly you don't read. take that hint yourself and fade or step up with an argument worth responding to.

aaron

21.

Let's go back to first principles. [Sorry for the length. Legal stuff makes that happen!]

IANAL, either, but I won't let that stop me from saying that I believe the district court was right in their summary judgement for Blizzard and Vivendi, but wrong in part as to the cause -- this is very definitely about copyright.

As I understand it, the point of copyright law isn't to exclude people from using an expression of art -- it's to extend the amount of and accessibility to such expressions by firmly protecting the ownership rights of the those who created that work. (The same goes for patents of ideas.)

If I write a book or a software program, it's mine. No one has any legal right to erase my name from that work, stick their own name on it, and claim that it's theirs. I don't assert this ownership right because I'm a greedy bastard; I assert it because property ownership stimulates creative production.

In part, ownership is a financial asset. Owning the rights to what I create means that I can sell those rights if I choose, thereby earning income for me, for my family, and (if I'm an employer such as Ford or Halliburton) for the people who work for me and their families.

But ownership isn't only about money -- sometimes it's simply about the art. Owning the rights to what I create means I am uniquely associated with that work, and no one else is. Whether I choose to sell my property or not is immaterial to you; whether you make money from a copy of my work or not is irrelevant to me. Unless I've explicitly chosen to give it away, it doesn't belong to you, and you have no right to pretend that it does.

The problem lies in what we might call "brand dilution": if anyone can claim ownership of what I uniquely create (because they're permitted to stick their name on a copy of my work), then the value of what I can create is diminished. But if I can't be uniquely identified with a work because there's no legal protection against someone else claiming to own what I create, what's my incentive to create anything?

So in general, we strongly protect copyright because that policy promotes the production of creative work. That means that in specific, the battle.net code is Blizzard's property. Grabbing it (or reverse-engineering from a copy) and tweaking it and extending access to it (even if you don't charge for doing so) is no less an violation of copyright protection than if I ran off copies of The Lord of the Rings with every occurrence of "Gandalf" changed to "Fandalg" and my name on the cover. It is not a substantially unique work, and because it is not, I quite properly have no right to claim that it is and in so doing diminish its value to its owner.

There is an acknowledged exception to this called "clean-room design." Although not applicable to patent law, it's generally understood that creating copyrightable expressions in a way that is demonstrably an original design from the ground up (hence the "clean-room" adjective) is not a violation of copyright protections. But the bnetd developers clearly did not use this process -- the court documents describe several ways in which they reverse-engineered the battle.net code to develop their version.

(There's also the "fair use" provision of the Copyright Act that allows citation of brief portions of a work for scholarly uses or in reviews. But the bnetd folks chose in oral argument not to base their appeal on this provision.)

And of course there are practical limits to the application of the principle of strongly protecting ownership rights, and those limits apply with greater force to software than to other kinds of artistic expressions. While I have no doubts as to the value of patent law, I believe that the practice of patenting software algorithms is an extremely bad idea whose misguided application has unnecessarily stifled the rate of innovation in software development. (Classic example: AT&T's "backing store" patent. Ever written code that saves something on the screen to memory, writes something else to that screen location, then restores the original data from memory? Pay up; you've infringed U.S. Patent 4,555,775. Unisys's U.S. Patent 4,558,302 on the Lempel-Ziv-Welch compression algorithm used in the GIF graphics file format is another well-known example.) Copyright has less restrictive protections since it covers expressions (code), not ideas (algorithms), but its protections last much longer, so it generates some of the same problems as software patents.

This doesn't mean I'm ready to have an EFF freak-out or join the Cult of Open Source. It just means I'm open to debating the length of time for which copyrights are granted for software. It's important to protect property rights... but not for so long that you create a near monopoly in a commercial software industry that seems to change at Moore's Law rates.

That concession made, the people behind bnetd have no such defense. I think they ran afoul of the U.S. Copyright Act, the Digital Millenium Copyright Act (DMCA), the World Intellectual Property Organization (WIPO) Copyright Treaty, and the international Berne Convention on copyright. bnetd's circumvention of battle.net's CD key access protection was a deliberate infringement of the federal DMCA, and that circumvention was not protected by a federal interoperability exception that conflicted or superseded any part of the state law under which Blizzard's EULA and TOU were agreed to, since that exception did not countenance circumvention that infringed USC 1202(a)(2).

Summary judgement for Blizzard and VU was appropriate. That's not going to stifle innovation -- it's going to promote it by telling developers of original content that their property ownership rights are still protected.

And that's a Good Thing.

Phew. Can I have Rehnquist's stuff? *g*

--Bart

22.

Thabor>I disagree that they were facilitating piracy. They did not distribute Blizzard's copyrighted server code, they didn't not distribute copies of Blizzard's copyrighted client.

The primary piracy, to my mind, is not duplication of the client per se, but the dismantling of Blizzard's attempts to protect it's proprietary rights to the multiplayer component of its games. That entirety of that multiplayer "content" doesn't lie explicitly in code on the server or the client. Nevertheless, I do consider the mutliplayer component part of their creation, even if it is in part an emergent property of the game. The fact that the bnetd software seems to have had no other purpose than to provide that content in a manner that completely subjugated Blizzards intellectual rights to defendant's own commercial interests.

You're right we do disagree a bit, in that I don't think you need to commit an act of distribution in order to "facilitate" piracy. The extent to which facilitation is legal, I don't pretend to know. Sounds lilke you know much more.

And again, I'm not ann advocate of the DCMA. I'm talking about principle, not law.

aaron

23.

I don't like how it is constantly stated that the purpose of bnetd was to circumvent the CD check.

I had understood the purpose of bnetd was to provide an alternative back-end to play Diablo on. A back end which lets you adjust the rules, fix what you perceive as bugs, etc. Doing a bit of research, I find the bnetd FAQ states they started the program to work around the inability to host TCP/IP Starcraft games on nets isolated from the internet. They then added useful features like ban controls so you can ensure only your friends are playing, working around the known bugs and hacks with the official servers.

This is why there is such a disconnect in this argument. To some, it seems bnetd is a tool for using duplicated cd keys. To others, bnetd is something to provide interoperability for the software that they have already purchased.

As pointed out already, even if the bnetd had spoofed a genuine client to login & authorize the keys, Blizzard would have just attacked with another arguement. Does this not tell us that the issue at hand is *not* the cd key issue? The issue is the existence of third party servers.

This decision seems to make it very clear that companies now have the right to prohibit third party servers. I'd like to see more debate focus on that question. This has been very unclear since the DCMA was created - one part says you are allowed to reverse engineer for interoperability, the other says you can't reverse engineer copy protection. It was feared that the second term nerfs the first term. Does this decision validate that concern?

Should companies be allowed to prohibit third party servers?

- Brask

24.

There are at least two things going on Brask.

The circumvention of the protection goes to why the 'reverse engineering' defense is unavailable. But even if they had been able to invoke that defense, it would have only protected them from one of the many things they were charged with (not to mention a few things Blizzard didn't bother to charge them with).

You pose the question as "should companies be allowed to prohibit third party servers?" which sounds very benign. But a more accurate way to pose the question is "should companies be powerless to stop their intellectual property from being offered for free on third party servers without any compensation?"

It is like, upon finding out that someone is reprinting copies of Harry Potter and handing them out for free, you asked the question, "should publishers be allowed to prohibit third party presses?" Of course not. But that is not the right question. The right question is, "should publishers be powerless to stop their intellectual property from being offered for free from third party printers without any compensation?

I am always hesitant to use analogy, because people tend to get preoccupied with the preciseness of the analogy to the detriment of the underlying argument, but hopefully the point is clear.

To address some of the other points . . .

Thabor ----> If I have a legitimate license to some music or to a book I should still have access to that content in 5 years. With DRM in 5 years your player probably won't work anymore. The vendor may not support that format anymore. Why should I have to repurchase content for which I already have a legitimate license?

That reasoning suggests one should have the right to turn in all your old beta max cassettes and 8-track tapes for new DVDs and CDs, which I assure you your local Virgin Megastore will politely - and legally - decline to do. There is nothing unusual about tying a license to a specific media - even if that media ceases to exist to your detriment.

Gregorus - I agree with Monkeysan. He may claim to be "talking mostly out of [his] philosophical ass," but it is a wise ass. Of all the professed non-lawyers in the thread, I think he's got the most promise for law school. I hope he takes that as a compliment and not a grave insult! :-)

Bart - You may not have Renquist's stuff. I believe he sent it all to his alt. But nice summary of the philosophy behind copyright law. :-)

25.

So, what I'm hearing from monkeysan (and Jimpy) is that writing code for third-party servers is perfectly legitimate, but running that code as a 'service' is not.

I don't know exactly what constitutes a service, but it seems like some are missing the fact that since the code is open source anyone can create such a 'service' in minutes simply by downloading and running the code.

Should it be legal for small groups of private individuals to do so? Is this any different than a large group of people doing so and offering it to the public? Does the decision bar both, or just the latter? Does it bar the legality of writing the code itself? This is what I do not understand.

If it bars the former, it seems as though the government will need to install spyware on all of our computers in order to enforce this decision.

To perhaps mis-use your analogy, Jimpy, this would be like 5 people who bought the Harry Potter book getting together and reading the first half, and then writing a fan-fiction second half of the book, and reading it to one another. Is this illegal? It may very well be. Is it wrong? I certainly don't think so. As a further thought experiment, if they later release their fan-fiction chapters on the internet, will that hurt or help the publisher of Harry Potter?

26.
You're right we do disagree a bit, in that I don't think you need to commit an act of distribution in order to "facilitate" piracy. The extent to which facilitation is legal, I don't pretend to know. Sounds lilke you know much more.

Please don't mistake assertive for knowledgeable. As I said earlier.. IANAL. I'm not even studying to be one.


Bart, well spoken, but I disagree with you on a major point.

That means that in specific, the battle.net code is Blizzard's property. Grabbing it (or reverse-engineering from a copy) and tweaking it and extending access to it (even if you don't charge for doing so) is no less an violation of copyright protection than if I ran off copies of The Lord of the Rings with every occurrence of "Gandalf" changed to "Fandalg" and my name on the cover. It is not a substantially unique work, and because it is not, I quite properly have no right to claim that it is and in so doing diminish its value to its owner.

Reverse engineering is analagous to writing a different book with the same general plot. It isn't merely running off copies with the names changed.

Additionally most code is so algorithmic in nature, that there is often very little to differentiate unique expressions of the same process to begin with. As much as I like for my work to be protected, I'm not sure doing so is substanially different from trying to protect a mathematical expression.


This decision seems to make it very clear that companies now have the right to prohibit third party servers. I'd like to see more debate focus on that question. This has been very unclear since the DCMA was created - one part says you are allowed to reverse engineer for interoperability, the other says you can't reverse engineer copy protection. It was feared that the second term nerfs the first term. Does this decision validate that concern?

In general I believe that development of third party servers is beneficial to the industry as whole. It mirrors the modding phenomona in single player games. I believe it should be supported so long as it is part of a non-commerical effort. Any commerical effort should already posses sufficent resources to develop their own client.

27.

It is most definitely illegal.

Fan-fiction is a tricky beast. On the one hand, it is a shame to crack down on enthusiastic fans. Especially young ones (there were a few cases where young fans had to, in fact, shut down Harry Potter fan-fiction sites, much to the delight of the press - "HARRY POTTER NIXES YOUNG FANS").

The reason it is illegal is because you are *still* stealing someone's intellectual property. Someone made up that whole world - the characters, the spells, the locations. They aren't just entitled to the specific text, they own the ideas. This is why random people can't make Star Trek movies, even if they use "new" captains and such - the whole (dare I say it) vitrual universe of Star Trek is copyrighted - including deriviative works.

As for whether it is wrong and whether it would help or hurt the Harry Potter franchise? Well, you are probably thinking very kindly of creative wonderful people coming up with creative wonderful stories. That might indeed help. Or at least not hurt. Wanna know what a HUGE source of "fan-fiction" is though? Pornography. For whatever random reason, there is a huge wealth of online pornographic literature featuring Harry Potter, Sailor Moon, Yu Gi Oh, etc. Basically, you name it, and someone has a porno fan version of it. And I'm guessing that even tastefully written Harry Potter pornography is not in the best interests of the franchise.

Yeah, now you're trying to imagine tasteful Harry Potter porn, aren't you? Pervert! :-)

Further complicating the whole legal arena is this little quirk: Failing to enforce your rights in one arena can often lead to you waiving them in others.

Put more simply, if you *don't* crack down on 8-year old Mary-Lou Susie, who wrote a cute little Harry Potter site on her Geocities web page, you open yourself up to attack from others who want to do the same thing. Their argument? You let Mary-Lou use your characters for free - why not me?

Ignore it enough and a court might find that you have effectively abandoned your rights by failing to enforce them.

I would venture to say that a huge majority of "cease and desist" letters are not issued because any particular use is oh-so-threatening, but rather because of the "use it or lose it" nature of intellectual property defense.

28.

Thabor ------> In general I believe that development of third party servers is beneficial to the industry as whole. It mirrors the modding phenomona in single player games. I believe it should be supported so long as it is part of a non-commerical effort. Any commerical effort should already posses sufficent resources to develop their own client.

I think the difficulty behind this distinction is that it focuses on only one end of the equation: the intent on the provider (commercial vs. non-commerical). It doesn't consider the effect on the owner of the intellectual property.

In other words, what if I personally wanted to photocopy Harry Potter and hand it out to underpriveliged kids for no commercial gain whatsoever? It is a completely non-commerical use. But the fact is, it is *still* stealing someone else's intellectual property.

You have to balance both the intent of the person using the property AND the interest of the owner. The people are Scholastic are entitled to sell their book, and I am not entitled to hand it out for free - even if my intent is both noble and completely devoid of commercial intent.

29.
That reasoning suggests one should have the right to turn in all your old beta max cassettes and 8-track tapes for new DVDs and CDs, which I assure you your local Virgin Megastore will politely - and legally - decline to do. There is nothing unusual about tying a license to a specific media - even if that media ceases to exist to your detriment.

I'm not sure where you get that idea. It suggests that I should be able to either convert it myself or pay someone to convert it to a useable format. In fact there are some rather expensive services out there for converting old vinyl records into digital media. While such processes might be used for piracy they also might be critical to a company like Sony for recovering information from old masters. Hardware emulators are another good example of this.

30.
I think the difficulty behind this distinction is that it focuses on only one end of the equation: the intent on the provider (commercial vs. non-commerical). It doesn't consider the effect on the owner of the intellectual property.

Perhaps I wasn't clear enough. I had thought we had transitioned into talking about the behavior of the industry in regard to third party servers, rather than legality.

I was attempting to express a belief that it is in the interests of the industry at least if not the owner to support non-commerical efforts in that regard. Although I believe it is in the owners interest as well.

Thus the references to the modding community.. With games like HalfLife and Doom as primary positive examples. I think their support of interoperation with third part modification has been of demonstrable benefit to them.

Online companies may be within their rights to prevent it. I doubt if I will ever agree that it in in their best interests to do so.

31.

Jimby, I believe all the issues you are addressing in your reply only come up in trademark law, not copyright. It is perfectly legal for me to make a movie in the Star Trek universe, as long as I don't use the name "Star Trek" or any character names that exist currently, or any other names that have been trademarked. The "you must enforce" rules also apply solely to trademarks, copyrights are never lost due to lack of enforcement.

I am quite familiar with the nature, quantity, and quality of fan fiction :) I knew my particular example would be illegal, but solely on the basis of trademark laws, which I don't think apply to the topic at hand.

That is, unless the writers of bnetd tried to pass themselves off as Blizzard or battle.net. Is 'bnetd' too close to 'battle.net'? Maybe. But they could just change the name if that were the case.

32.

Jimpy -> You pose the question as "should companies be allowed to prohibit third party servers?" which sounds very benign. But a more accurate way to pose the question is "should companies be powerless to stop their intellectual property from being offered for free on third party servers without any compensation?"

Posing the question that way, I'd have no objection. I'd even make it stronger and say that the companies should have the power to stop their intellectual property from being offered on third party servers, period. Question of "free" or "without any compensation" would suggest some mandatory licensing scheme.

The dividing point is that I do not believe that the bnet.d *protocols* represent intellectual property. I thought the purpose of the interoperabilty provisions is to specifically prohibit making protocols intellectual property?

The argument that I'm seeing here is that the Diablo Video Game + Battlenet form a complete, inseperable, product, and recreating one component is thus creating a derivitive work. First, the diablo video game stands quite well on its own. Second, Ford would have loved to make this argument for any one of the widgets that goes into its cars: why didn't that hold? Third, I do not at all agree that "patches" which do not contain the original content, but merely describe modifications of it, are themselves derivitive works.

The example that comes to my mind is modding. Should game companies be able to prohibit third party mods? I suspect they *can* now - just encrypt your .wad with something based on the cd-key, any mod will thus also imply copy protection circumvention.

Also, before we decry fanfic as the realm of pornography, we should keep in mind that one of the early Wolfenstein mods was one to replace all of the walls with pornography. Sturgeon's law is hardly a good reason to outlaw a field of human endeavour.

33.

What do those who think that the bnetd decision was the right one expect to do if Blizzard ever shuts down battle.net? Would it make a difference if they instead raised the price for battle.net access to something like $100000/year?

34.

PJ

I would not care since I don't play on battle.net, and if I did I would play somewhere else.

If it cost $10,000 a year I would not pay, niether would anyone else.

More to the point, the law is not concerned with What If? questions. The legislature may be, but the courts, at least in this case, are trying to determine facts and issue judgements.

35.

What precedents does this set? ScummVM, an open source project that emulates LucasArts' SCUMM adventure game engine to allow for playing classic games like "Maniac Mansion" on modern hardware or alternative platforms, "bypasses" the section of the data files containing copy protection schemes. Early versions of Transgaming's WineX (now called Cedega), which allows for playing certain DirectX based Windows games on Linux, bypassed CD detection schemes as they were often directly tied to Windows methods of accessing CD-ROMs. Both these products have perfectly legitimate uses, and are in no way meant to encourage piracy.
Similarly, in corporate or educational environments where hard drive cloning is a common way to manage a large set of PCs, copy protection schemes and CD-keys are often a serious PITA. Use of "cracks" and/or obscure workarounds is common practice to make such environments manageable. If an audit takes place, and the number of licenses adds up with the number of installed copies, the manufacturer does not care what methods have been used to install and manage the software. Thus, there is a legitimate use for "cracks".

The concensus in the P2P battle has long been that P2P file-sharing technology must be protected, as long as there is a case for a legitimate use for it. Recently, MGM vs. Grokster found that an exception to this rule-of-thumb is that if a producer of a P2P file-sharing technology publically endorses utilizing it for copyright violations, then that company can be found to be liable for copyright violations committed by its customers. Using similar logic (don't know if logic has a place in a courtroom or not), could one not find that if a technology was developed which had a strong case for legitimate use - which bnetd definitely had - and whose developers have not marketed it as a method for circumventing copy protection - which I believe they did not do, although the community of users certainly knew of this "perk" - then it would be legal for the same reasons as P2P technologies are generally legal?

I presume that it will be argued that they lost the case not due to the legality of the technology itself, but due to reverse engineering methods, breach of contract etc. The same arguments could likely be made to put most of the modding community behind bars as well. That sounds like legal smoke and mirrors to me, to (poorly) conceal the fact that Blizzard want complete control of their products even after they have sold it to their customers.

36.

Jimpy, you said: "Ignore it enough and a court might find that you have effectively abandoned your rights by failing to enforce them."

That is trademark law. Copyright law does not abandon rights. While trademarks have to be vigorously (and consistently) protected in order to maintain rights, copyright stays in effect, despite how often someone enforces rights. For instance, suppose an author forces a fan fiction site to be taken down, but let's another one stay up. Or, let's all the fan fiction sites stay up, then one day decides to force one down (personally, I think it's a crappy thing to do -- I'm looking at you, Anne Rice -- but whatever), they will be able to, even though they didn't force any other site down.

This is the huge gap between copyright and trademark (aside from the fact that they protect different things...sort of).

The comments to this entry are closed.